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HOUSE ENROLLED ACT No. 1149

AN ACT to amend the Indiana Code concerning alcohol and tobacco.

Be it enacted by the General Assembly of the State of Indiana:

SECTION 1. IC 7.1-1-2-2 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 2. Except as provided
in IC 7.1-5-1-3 and IC 7.1-5-1-6, this title applies to the following:
(1) The commercial manufacturing, bottling, selling, bartering,
importing, transporting, delivering, furnishing, or possessing of
alcohol, alcoholic beverages, industrial alcohol, malt, malt syrup,
malt extract, liquid malt or wort.
(2) The sale, possession, use, and distribution of tobacco
products.
SECTION 2. IC 7.1-5-12 IS ADDED TO THE INDIANA CODE
AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Chapter 12. Prohibition on Smoking
Sec. 0.5. As used in this chapter, "ashtray" means any
receptacle that is used for disposing of smoking materials,
including ash and filters.
Sec. 1. As used in this chapter, "place of employment" means an
enclosed area of a structure that is a place of employment. The
term does not include a private vehicle.
Sec. 2. As used in this chapter, "public place" means an enclosed
area of a structure in which the public is invited or permitted.
Sec. 3. As used in this chapter, "smoking" means the:
(1) carrying or holding of a lighted cigarette, cigar, or pipe or
any other lighted tobacco smoking equipment; or
(2) inhalation or exhalation of smoke from lighted tobacco
smoking equipment.
Sec. 4. (a) Except as provided in section 5 of this chapter,
smoking is prohibited in the following:
(1) A public place.
(2) A place of employment.
(3) A vehicle owned, leased, or operated by the state if the
vehicle is being used for a governmental function.
(4) The area within eight (8) feet of a public entrance to:
(A) a public place; or
(B) a place of employment.
(b) An employer shall inform each of the employer's employees
and prospective employees of the smoking prohibition applying to
the place of employment.
(c) An owner, operator, manager, or official in charge of a
public place or place of employment shall remove ashtrays or other
smoking paraphernalia from areas of the public place or place of
employment where smoking is prohibited under this chapter.
However, this subsection does not prohibit the display of ashtrays
or other smoking paraphernalia that are intended only for retail
sale.
(d) An owner, operator, manager, or official in charge of a
public place or place of employment shall post conspicuous signs
at each public entrance that read "State Law Prohibits Smoking
Within 8 Feet of this Entrance" or other similar language.
Sec. 5. (a) Except as provided in subsection (c) and subject to
section 13 of this chapter, smoking may be allowed in the
following:
(1) A horse racing facility operated under a permit under
IC 4-31-5 and any other permanent structure on land owned
or leased by the owner of the facility that is adjacent to the
facility.
(2) A riverboat (as defined in IC 4-33-2-17) and any other
permanent structure that is:
(A) owned or leased by the owner of the riverboat; and
(B) located on land that is adjacent to:
(i) the dock to which the riverboat is moored; or
(ii) the land on which the riverboat is situated in the case
of a riverboat described in IC 4-33-2-17(2).
(3) A facility that operates under a gambling game license
under IC 4-35-5 and any other permanent structure on land
owned or leased by the owner of the facility that is adjacent to
the facility.
(4) A satellite facility licensed under IC 4-31-5.5.
(5) An establishment owned or leased by a business that meets
the following requirements:
(A) The business was in business and permitted smoking on
December 31, 2012.
(B) The business prohibits entry by an individual who is
less than twenty-one (21) years of age.
(C) The owner or operator of the business holds a beer,
liquor, or wine retailer's permit.
(D) The business limits smoking in the establishment to
either:
(i) cigar smoking; or
(ii) smoking with a waterpipe or hookah device.
(E) During the preceding calendar year, at least ten
percent (10%) of the business's annual gross income was
from:
(i) the sale of cigars and the rental of onsite humidors; or
(ii) the sale of loose tobacco for use in a waterpipe or
hookah device.
(F) The person in charge of the business posts in the
establishment conspicuous signs that display the message
that cigarette smoking is prohibited.
(6) A premises owned or leased by and regularly used for the
activities of a business that meets all of the following:
(A) The business is exempt from federal income taxation
under 26 U.S.C. 501(c).
(B) The business:
(i) meets the requirements to be considered a club under
IC 7.1-3-20-1; or
(ii) is a fraternal club (as defined in IC 7.1-3-20-7).
(C) The business provides food or alcoholic beverages only
to its bona fide members and their guests.
(D) The business, during a meeting of the business's
members, voted within the previous two (2) years to allow
smoking on the premises.
(E) The business:
(i) provides a separate, enclosed, designated smoking
room or area that is adequately ventilated to prevent

migration of smoke to nonsmoking areas of the premises;
(ii) allows smoking only in the room or area described in
item (i); and
(iii) does not allow an individual who is less than eighteen
(18) years of age to enter into the room or area described
in item (i).
(7) A retail tobacco store used primarily for the sale of
tobacco products and tobacco accessories that meets the
following requirements:
(A) The owner or operator of the store held a valid tobacco
sales certificate issued under IC 7.1-3-18.5 on June 30
2012.
(B) The store prohibits entry by an individual who is less
than eighteen (18) years of age.
(C) The sale of products other than tobacco products and
tobacco accessories is merely incidental.
(D) The sale of tobacco products accounts for at least
eighty-five percent (85%) of the store's annual gross sales.
(E) Food or beverages are not sold for consumption on the
premises, and there is not an area set aside for customers
to consume food or beverages on the premises.
(8) A bar or tavern:
(A) for which a permittee holds:
(i) a beer retailer's permit under IC 7.1-3-4;
(ii) a liquor retailer's permit under IC 7.1-3-9; or
(iii) a wine retailer's permit under IC 7.1-3-14;
(B) that does not employ an individual who is less than
eighteen (18) years of age;
(C) that does not allow an individual who:
(i) is less than twenty-one (21) years of age; and
(ii) is not an employee of the bar or tavern;
to enter any area of the bar or tavern; and
(D) that is not located in a business that would otherwise
be subject to this chapter.
(9) A cigar manufacturing facility that does not offer retail
sales. (10) A premises of a cigar specialty store to which all of the
following apply: (A) The owner or operator of the store held a valid tobacco
sales certificate issued under IC 7.1-3-18.5 on June 30,
2012.
(B) The sale of tobacco products and tobacco accessories

account for at least fifty percent (50%) of the store's
annual gross sales.
(C) The store has a separate, enclosed, designated smoking
room that is adequately ventilated to prevent migration of
smoke to nonsmoking areas.
(D) Smoking is allowed only in the room described in
clause (C).
(E) Individuals who are less than eighteen (18) years of age
are prohibited from entering into the room described in
clause (C). (F) Cigarette smoking is not allowed on the premises of the
store. (G) The owner or operator of the store posts a conspicuous
sign on the premises of the store that displays the message
that cigarette smoking is prohibited.
(H) Food or beverages are not sold for consumption on the
premises, and there is not an area set aside for customers
to consume food or beverages on the premises.
(11) The premises of a business that is located in the business
owner's private residence (as defined in IC 3-5-2-42.5) if the
only employees of the business who work in the residence are
the owner and other individuals who reside in the residence. (b) The owner, operator, manager, or official in charge of an
establishment or premises in which smoking is allowed under this
section shall post conspicuous signs in the establishment that read
"WARNING: Smoking Is Allowed In This Establishment" or other
similar language.
(c) This section does not allow smoking in the following enclosed
areas of an establishment or premises described in subsection
(a)(1) through (a)(10):
(1) Any hallway, elevator, or other common area where an
individual who is less than eighteen (18) years of age is
permitted.
(2) Any room that is intended for use by an individual who is
less than eighteen (18) years of age.
(d) The owner, operator, or manager of an establishment or
premises that is listed under subsection (a) and that allows smoking
shall provide a verified statement to the commission that states that
the establishment or premises qualifies for the exemption. The
commission may require the owner, operator, or manager of an
establishment or premises to provide documentation or additional
information concerning the exemption of the establishment or

premises.
Sec. 6. (a) The commission shall enforce this chapter.
(b) This chapter may also be enforced by:
(1) the state department of health established by IC 16-19-1-1;
(2) a local health department, as defined in IC 16-18-2-211;
(3) a health and hospital corporation established by
IC 16-22-8-6;
(4) the division of fire and building safety established within
the department of homeland security by IC 10-19-7-1; and
(5) a law enforcement officer;
in cooperation with the commission.
(c) The commission, the state department of health, a local
health department, a health and hospital corporation, the division
of fire and building safety, or a law enforcement officer may
inspect premises that are subject to this chapter to ensure that the
person responsible for the premises is in compliance with this
chapter.
Sec. 7. (a) This section does not apply to an establishment or
premises in which smoking is allowed under section 5 of this
chapter.
(b) The owner, operator, manager, or official in charge of a
public place shall do the following:
(1) Post conspicuous signs that read "Smoking Is Prohibited
By State Law" or other similar language.
(2) Ask an individual who is smoking in violation of this
chapter to refrain from smoking.
(3) Cause to be removed from the public place an individual
who is smoking in violation of this chapter and fails to refrain
from smoking after being asked to refrain from smoking.
(c) In addition to the requirements under subsection (b), the
owner or operator of a restaurant shall post a conspicuous sign at
each entrance to the restaurant informing the public that smoking
is prohibited in the restaurant.
Sec. 8. (a) A person who smokes in an area where smoking is
prohibited by this chapter commits prohibited smoking, a Class B
infraction, except as provided in subsection (b).
(b) A person who smokes in an area where smoking is
prohibited by this chapter commits prohibited smoking, a Class A
infraction if the person has been adjudged to have committed at
least three (3) prior unrelated infractions under:
(1) this section; or
(2) IC 16-41-37-4 (before its repeal).

Sec. 9. (a) A local health department may enforce this chapter
by filing a civil action under IC 16-20-1-26.
(b) A health and hospital corporation may enforce this chapter
by filing a civil action under IC 16-22-8-31.
(c) The division of fire and building safety may enforce this
chapter by filing a civil action under IC 22-12-7-13.
Sec. 10. (a) An owner, manager, operator, or official in charge
of a public place or place of employment who fails to comply with
a requirement imposed by this chapter commits a Class B
infraction, except as provided in subsection (b).
(b) A failure to comply described in subsection (a) is a Class A
infraction if the owner, manager, operator, or official has been
adjudged to have committed at least three (3) prior unrelated
infractions under this chapter.
Sec. 11. An owner, a manager, or an employer shall not
discharge, refuse to hire, or in any manner retaliate against an
individual for:
(1) reporting a violation of this chapter; or
(2) exercising any right or satisfying any obligation under this
chapter.
Sec. 12. (a) As used in this section, "school bus" means a motor
vehicle that is:
(1) designed and constructed for the accommodation of at
least ten (10) passengers;
(2) owned or operated by a public or governmental agency, or
privately owned and operated for compensation; and
(3) used for the transportation of school children to and from
the following:
(A) School.
(B) School athletic games or contests.
(C) Other school functions.
(b) As used in this section, "school week" means a week that:
(1) begins on Monday and ends on Friday; and
(2) includes at least three (3) days during which, on each day,
more than four (4) hours of classroom instruction are
provided.
(c) A person who smokes in a school bus during a school week
or while the school bus is being used for the transportation of
school children to and from:
(1) a school;
(2) a school athletic game or contest; or
(3) another school function;
commits a Class B infraction, except as provided in subsection (d).
(d) A person who smokes in a school bus as described in
subsection (c) commits a Class A infraction if the person, within
the twelve (12) months immediately preceding the person's act of
smoking in a school bus, committed at least three (3) prior
unrelated acts of smoking in a school bus for which the person was
adjudged to have committed infractions under this section.
Sec. 13. (a) This chapter does not prohibit a county, city, town,
or other governmental unit from adopting an ordinance more
restrictive than this chapter. (b) This chapter does not supersede a smoking ordinance that
is adopted by a county, city, town, or other governmental unit
before the effective date of this chapter and that is more restrictive
than this chapter. Sec. 14. Beginning in 2013, the commission shall present an
annual report to the health finance commission concerning the
implementation and enforcement activities taken under this
chapter. The report must include the number of smoking related
inspections conducted and violations for the previous calendar
year. The commission shall submit the report in electronic format
under IC 5-14-6 to the legislative services agency not later than
September 1 of each year.
SECTION 3. IC 12-7-2-178.8 IS REPEALED [EFFECTIVE JULY
1, 2012]. Sec.178.8."Smoking",forpurposesofIC12-24-2-8,hasthemeaningsetforthinIC16-41-37-3.
SECTION 4. IC 12-24-2-8, AS AMENDED BY SEA 24-2012,
SECTION 21, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 8. (a)NotwithstandingIC12-27-3-3,thedirectorhascompleteauthoritytoregulatesmoking(asdefinedinIC16-41-37-3)withinastateinstitution.(b) A physician licensed under IC 25-22.5 may prescribe nicotine tobacco cessation devices as is medically necessary for a resident of
a state institution.
SECTION 5. IC 16-18-2-10, AS AMENDED BY P.L.42-2011,
SECTION 34, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 10. (a) "Agency", for purposes of IC 16-23.5, has
the meaning set forth in IC 16-23.5-1-2.(b)"Agency",forpurposesofIC16-41-37,hasthemeaningsetforthinIC16-41-37-1.
SECTION 6. IC 16-18-2-295, AS AMENDED BY HEA 1186-2012,
SECTION 13, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2012]: Sec. 295. (a) "Provider", for purposes of IC 16-21-8,

has the meaning set forth in IC 16-21-8-0.5.
(b) "Provider", for purposes of IC 16-38-5, IC 16-39 (except for
IC 16-39-7), and IC 16-41-1 through IC 16-41-9, andIC16-41-37,
means any of the following:
(1) An individual (other than an individual who is an employee or
a contractor of a hospital, a facility, or an agency described in
subdivision (2) or (3)) who is licensed, registered, or certified as
a health care professional, including the following:
(A) A physician.
(B) A psychotherapist.
(C) A dentist.
(D) A registered nurse.
(E) A licensed practical nurse.
(F) An optometrist.
(G) A podiatrist.
(H) A chiropractor.
(I) A physical therapist.
(J) A psychologist.
(K) An audiologist.
(L) A speech-language pathologist.
(M) A dietitian.
(N) An occupational therapist.
(O) A respiratory therapist.
(P) A pharmacist.
(Q) A sexual assault nurse examiner.
(2) A hospital or facility licensed under IC 16-21-2 or IC 12-25 or
described in IC 12-24-1 or IC 12-29.
(3) A health facility licensed under IC 16-28-2.
(4) A home health agency licensed under IC 16-27-1.
(5) An employer of a certified emergency medical technician, a
certified advanced emergency medical technician, or a licensed
paramedic.
(6) The state department or a local health department or an
employee, agent, designee, or contractor of the state department
or local health department.
(c) "Provider", for purposes of IC 16-39-7-1, has the meaning set
forth in IC 16-39-7-1(a).
(d) "Provider", for purposes of IC 16-48-1, has the meaning set forth
in IC 16-48-1-3.
SECTION 7. IC 16-18-2-323.1 IS REPEALED [EFFECTIVE JULY
1, 2012]. Sec.323.1."Schoolbus",forpurposesofIC16-41-37,hasthemeaningsetforthinIC16-41-37-2.3.